September 2015

The Golden Rule of Shipping

In the October 2014 issue of Spray, I described the Notice of Proposed Rulemaking, HM-253, published on Aug. 11, 2014 (79 FR 46748), which proposed revisions to the U.S. Department of Transportation’s (DOT) Pipeline & Hazardous Materials Safety Administration (PHMSA) Hazardous Materials Regulations (HMR) for return shipments of certain hazardous materials by motor vehicle, commonly referred to as the “Return Logistics Rule.”

In this proposal, PHMSA defined “reverse logistics” for dangerous goods that are intended to be returned to, or between, a vendor, manufacturer, distributor or other person for the purpose of returning for credit, recalling product, replacement or other reasons. PHMSA proposed the creation of a new section within the HMR (49 CFR §173.157—Reverse Logistics—General Requirements & Exceptions) that would provide an exception for certain hazardous materials that are transported in a manner that meets the definition of “reverse logistics.”

However, it appears that some companies may have assumed, erroneously, that the Notice of Proposed Rulemaking was, in fact, a Final Rule and have prepared shipments for return to manufacturers and distributors under the relaxed rules.

I recently intercepted a fairly large shipment of aerosol cans that were intended to be shipped back to the supplier under these provisions. Fortunately, they were not put into the transportation chain and are still awaiting disposition pending the approval of the DOT Final Rule, which is not expected until the third or fourth quarter of this calendar year.

A word of caution here: know the Golden Rule! The Golden Rule is it’s not a rule until it’s a final rule.

It typically takes a year or more for a proposed rule to become a final rule. The DOT is generally required (with a few limited exceptions) to publish an Advanced Notice of Proposed Rulemaking (ANPRM), followed by a comment period, after which the DOT takes into account comments from the regulated industry and public, petitions for reconsideration, or letters in support of the proposed rule.

Following that, the agency will then publish a Proposed Rule that takes into account the comments received, additional proposed changes and harmonized codes (if any). Another comment period is generally offered following the Notice of Proposed Rulemaking (NPRM) and then the Final Rule is published. In most cases, the DOT will offer a generous “phase in period” of between six months and three years. In the case of the changes to the Consumer Commodity, ORM-D requirements, the DOT offered a very generous extension of time (eight years) until the mandatory compliance date.

Current RegulationsCurrently, the HMR do not provide any specific exceptions for shipments made in the reverse logistics supply chain. Consequently, all hazardous materials shippers should be forewarned that consignments from a retail outlet back to the distribution facility are subject to the same requirements as when they were originally shipped. The retail outlet is responsible for ensuring that the goods are properly marked, labeled, described, packed, packaged, stowed, segregated and declared for transport.

The penalties for violating these rules can be quite substantial. Although one might be able to successfully argue that it is the intent of the DOT to relax these rules, a civil penalty may still be assessed. Any penalties under the current guidelines would, presumably, be mitigated downward, but not dismissed outright. In other words, if you jump the gun, you can still be disqualified.

Reverse Logistics Rule SummaryEven though the proposed rule was already published in Spray, I would encourage readers to go back to that October 2014 article and review the proposed Reverse Logistics Rule. I’ve offered a quick summary of the rulemaking below just in case.

PHMSA will create a new section, 49 CFR §173.157—Reverse Logistics—General Requirements & Exceptions, which authorizes a limited number of hazardous materials, including:

(2) A Class 3, 8, 9, Division 4.1, 5.1, 5.2, 6.1, 6.2 material contained in a packaging having a gross mass or capacity in each inner packaging not exceeding:

(i) 0.5 kg or 0.5 L for a Packing Group I material;

(ii) 1.0 kg or 1 L for a Packing Group II;

(iii) 5kg or 5L for a Packing Group III, or ORM–D material;

(iv) 30 L for a diluted mixture, not to exceed 2% concentration, of a Class Three, Eight or Nine material or a Division 6.1 material;

(3) A Division 2.1 or 2.2 material in a cylinder or aerosol container with a gross weight not over 30kg. For the purposes of this section, a cylinder or aerosol container may be assumed to meet the definition of a Division 2.1 or 2.2 materials, respectively, even if the exact pressure is unknown; and

(4) A Division 4.3 material in Packing Group II or Ill contained in a packaging having a gross capacity not exceeding 1L.

PackagingAll packaging must be leak tight for liquids and gases, sift-proof for solids, and be securely closed, secured against shifting and protected against damage. All Inner packaging must be secured against movement within the outer package and protected against damage under conditions normally incident to transportation. For liquids, the inner packaging must be leak-proof, and the outer packaging must contain sufficient absorbent material to absorb the entire contents of the inner packaging. For solids, inner packaging must be sift-proof.

In addition, each material must be packaged in the manufacturer’s original packaging if available, or a packaging of equal or greater strength and integrity. Outer packaging is not required for receptacles (e.g., cans and bottles) that are secured against shifting in cages, carts, bins, boxes or compartments. Compromised receptacles must be placed in an inner packaging or outer packing that will prevent spillage in transportation.

Aerosols must be packed to prevent inadvertent discharge of the contents from the aerosol packaging during transport. Each aerosol container must be secured with a cap to protect the valve stem. Other cylinders or pressure vessels containing a Division 2.1 or 2.2 materials, such as DOT–39 cylinders and cylinders containing limited quantities of compressed gases, must conform to the packaging, qualification, maintenance, and use requirements of the HMR.

Hazard CommunicationThe outer packaging, other than a cylinder shipped as a single packaging, must be marked with a common name or proper shipping name to identify the hazardous material it contains.

TrainingPHMSA will require that each person who offers or transports a hazardous material under the reverse logistics exception must be familiar with the requirements of 49 CFR §173.157.

Employees that prepare reverse logistics shipments, as defined in 49 CFR §171.8 of the HMR, subject to the exceptions in this new section, are not subject to the training requirements of this subchapter provided:

(1) The employer has identified the hazardous materials subject to the reverse logistics rule, has verified compliance with the appropriate conditions and limitations and has provided training and supervision to persons preparing or offering these shipments for transportation, or transporting shipments in reverse logistics to make the provisions of this rule effective.

(2) The employee has received appropriate training applicable to the material to be offered in transport in accordance with the provisions of this rule. The training must enable the employee to recognize the hazardous materials, identify the hazards associated with the applicable material and prepare the shipment as provided by this section.

(3) The employer must maintain a record of those employees receiving the training required by this section; and

(4) The operator of a motor vehicle that contains a reverse logistics material must be informed of the presence of the hazardous material and must be informed of the requirements of this section.

Other Requirements & ExceptionsA reverse logistics material may be transported by motor vehicle with other hazardous materials without affecting its eligibility for the exceptions provided by this rule.

Hazardous materials that may react dangerously with one another may not be transported in the same outer packaging. However, different hazard classes of materials in reverse logistics may be transported in the same cargo transport unit provided that they are adequately separated to prevent commingling of materials that may result in a dangerous reaction in the event of an accidental release during transport.

Shipments made under the Reverse Logistics Rule are still subject to the incident reporting requirements in 49 CFR §171.15, but shipments prepared, offered for transportation or transported under this exception are not subject to any other requirements of the DOT’s Hazardous Materials Regulations.

Again, it’s wise to remember the Golden Rule…it’s not a rule until it’s a final rule.

For questions regarding this rule, its implementation or impact, or to obtain a copy of the Notice of Proposed Rulemaking, or to receive a notice when the Final Rulemaking is published, contact the author by e-mail: [email protected] or by phone at +1 (310) 370-3600.